Gregory Kelley v. Jo Anne B. Barnhart ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3255
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Gregory Kelley, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Jo Anne B. Barnhart, Commissioner of *
Social Security, *
*
Defendant - Appellee. *
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Submitted: March 11, 2004
Filed: June 17, 2004
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Before RILEY and MELLOY, Circuit Judges, and ERICKSON,1 District Judge.
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MELLOY, Circuit Judge.
1
The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota, sitting by designation.
Gregory Kelley appeals the district court’s2 order affirming the Commissioner’s
determination that he was not disabled. We affirm.
I.
Kelley applied for disability insurance benefits under Title II of the Social
Security Act (the “Act”), 42 U.S.C. §§ 401 et seq., and supplemental security income
benefits under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Before the ALJ,
Kelley claimed disability due to a genetic skin condition and related impairments. He
specifically alleged swelling, blisters, peeling, lesions, infections, chronic itching,
fatigue, inability to sleep, depression, and irritability. The ALJ reviewed the records
of treating and consulting physicians and psychiatrists. In addition, the ALJ
considered Kelley’s work history, Kelley’s subjective claims of physical limitations,
the non-health-related reasons for Kelley’s termination of employment, and the fact
that Kelley repeatedly failed to comply with his prescribed medication and treatment
regimen.
The ALJ determined that Kelley’s physical and mental impairments,
individually and collectively, were not severe. In reaching this determination, the
ALJ discounted Kelley’s complaints as well as Kelley’s personal descriptions of his
limitations. The Appeals Council declined further review, and the ALJ’s decision
became the final decision of the Commissioner. The district court affirmed. On
appeal, Kelley argues that the ALJ failed to consider certain evidence favorable to a
finding of a severe impairment, namely, the opinion of a consulting, non-treating
psychiatrist, Dr. Scott Morrison. Kelley argues specifically that, in light of Dr.
Morrison’s opinion, there is not substantial evidence to support the ALJ’s
2
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
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determination. We address below the evidence in support of the ALJ’s findings as
well as Dr. Morrison’s opinion.
Kelley’s past relevant work experience was as a machine operator at a factory.
Kelley lost his job as a machine operator in 1999 when his employer’s business
closed. He then worked briefly as a production laborer until he was laid off. Kelley
did not leave employment due to his medical condition.
Kelley testified he was on medication for itching, insomnia, and depression, the
medications helped “a little bit,” and they caused no adverse side effects. He claimed
to have lesions on his neck, back, hands, and feet and claimed this skin condition
affected his ability to work. He described his ability to work as limited because he
could only sit for one to two hours at a time, stand for one hour at a time, and walk
for one-half block. In addition, he claimed fatigue limited his ability to lift. He said
he would not be able to perform his past relevant work as a machine operator because
he was intolerant to sunlight and heat and because he had swelling in his feet.
Finally, he stated he had a poor memory and lost his temper two or three times per
week at which times he would curse a great deal.
Kelley’s history of medical treatment contained many instances of missed or
canceled appointments and repeated failures to take prescribed medicines. He sought
treatment for a rash in August of 2000, received treatment, and in October 2000,
showed improvement. He sought treatment for a right ganglion cyst in 2002 and
declined the suggested treatment, stating that the cyst really did not bother him too
much at the time. In addition, he failed to fill certain skin treatment prescriptions.
He sought psychiatric treatment in January 2001, was diagnosed with a major
depressive disorder secondary to his general medical condition, and received a course
of treatment that continued through May 2002. His psychiatrist noted numerous
canceled appointments, a general improvement in Kelley’s condition when he took
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his medications, and a general decline in Kelley’s condition when he failed to take
his medications. The ALJ concluded, “[T]reatment has been minimal considering
claimant’s allegations of a disabling medical condition.”
A consulting physician examined Kelley in April 2002 and found Kelley’s
ability to perform work-related functions such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking, and traveling unlimited. Consulting
psychiatrist, Dr. Scott Morrison, M.D., also examined Kelley in April 2002.
Although Kelley argues that the ALJ failed to consider Dr. Morrison’s opinion, the
record belies Kelley’s claim. The ALJ stated in his findings:
[Dr.] Morrison . . . indicated that it was impossible for him to perform
a very thorough examination of claimant because of his profound
sleepiness, much of the time, claimant seemed not to be paying
attention. Overall, Dr. Morrison noted that it was impossible for him to
make a definitive diagnosis in claimant’s case.
Kelley focuses on a different portion of Dr. Morrison’s opinion. In particular,
Kelley points to a Medical Source Statement that Dr. Morrison completed in which
he checked answers to standard questions to indicate: (1) Kelley had moderate
restrictions on his ability to understand, remember, and carry out short, simple
instructions; (2) Kelley had marked restrictions on his ability to understand,
remember, and carry out detailed instructions; and (3) Kelley had marked restrictions
on his ability to interact appropriately with the public, supervisors, co-workers, and
work pressures in a usual work setting.
II.
We review de novo the district court’s decision to uphold the denial of social
security benefits. Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir. 2000). Our review of
the Commissioner’s decision, however, is deferential, and we do not substitute our
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own view of the evidence for that of the Commissioner. See id. Rather, we affirm
the Commissioner’s decision if supported by substantial evidence on the record as a
whole. Dixon v. Barnhart, 353 F.3d 602, 604 (8th Cir. 2003); Grebenick v. Chater,
121 F.3d 1193, 1197-98 (8th Cir. 1997); Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir.
1997). Substantial evidence is evidence that a reasonable mind would find as
adequate to support a decision, considering evidence that detracts from the
Commissioner’s decision as well as evidence that supports it. Young v. Apfel, 221
F.3d 1065, 1068 (8th Cir. 2000). The fact that some evidence may support a
conclusion opposite from that reached by the Commissioner does not alone permit
our reversal of the Commissioner’s decision. Gaddis v. Chater, 76 F.3d 893, 895 (8th
Cir. 1996). Rather, “‘[i]f, after review, we find it possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner’s
findings, we must affirm the decision of the Commissioner.’” Dixon, 353 F.3d at 604
(quoting Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996)).
In evaluating claims for disability, we conduct a five step sequential
evaluation: (1) is the claimant engaging in substantial gainful activity; (2) does the
claimant have severe impairment(s); (3) does the impairment or combination of
impairments meet or equal an impairment listed in the Listing of Impairments in
Appendix 1, Subpart P, 20 C.F.R. Part 404; (4) does the impairment or combination
of impairments prevent the claimant from doing past relevant work; and (5) does the
impairment or combination of impairments prevent the claimant from doing any other
work which exists in significant numbers in the national economy. 20 C.F.R. §
404.1520(a)-(f). Here, the ALJ concluded the evaluation at step 2 after discounting
Kelley’s complaints and finding that Kelley had no severe impairments. We agree
with these findings.
The absence of supporting medical evidence is relevant to the consideration of
a claimant’s subjective medical complaints. See Wilson v. Chater, 76 F.3d 238, 241
(8th Cir. 1996); 20 C.F.R. § 416.928 (“Your statements (or those of another person)
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alone, however, are not enough to establish that there is a physical or mental
impairment.”). Further, a failure to follow prescribed medical treatment without good
cause is a basis for denying benefits. Roth v. Shalala, 45 F.3d 279, 282 (8th Cir.
1995). Infrequent treatment is also a basis for discounting a claimant’s subjective
complaints. Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987). Finally, the ALJ
may consider a claimant’s unresponsive or exaggerated responses during medical
examination as well as the fact that a claimant left work for reasons other than a
medical condition. See Jones v. Callahan, 122 F.3d 1148, 1152 (8th Cir. 1997)
(noting that ALJ may consider evidence that a claimant has exaggerated his or her
symptoms when evaluating claimant's subjective complaints of pain); Browning v.
Sullivan, 958 F.2d 817, 823 (8th Cir. 1992) (finding that a cessation of work for
reasons unrelated to medical condition militated against a finding of disability).
Here, more than substantial evidence supports the Commissioner’s decision.
The infrequency of Kelley’s attempts to treat his condition and his failure to follow
his prescribed treatments were actions inconsistent with the severity of his
complaints. Kelley left work for reasons unrelated to his medical conditions.
Kelley’s own description of his work limitations were out of proportion with those
described by the consulting physician and out of proportion with any evidence
provided by the records of treating physicians. In light of these inconsistencies, it
was permissible for the Commissioner to discount Kelley’s subjective complaints.
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). Having discounted these
complaints, the medical records, the conclusions of the consulting physicians, and
Kelley’s work history provided substantial evidence to support a finding of no severe
impairment(s).
Although the responses that Dr. Morrison provided on the Medical Source
Statement indicated some marked limitations, Dr. Morrison questioned the validity
of his own opinion due to Kelley’s non-responsiveness during examination.
Accordingly, it was permissible for the Commissioner to conclude that Dr.
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Morrison’s opinion did not support a finding of a severe impairment. Further, even
if Dr. Morrison’s responses had been more conclusive, the presence of evidence that
might support a conclusion opposite to that reached by the Commissioner does not
permit reversal if the balance of the record lends substantial support to the
Commissioner’s decision. Dixon, 353 F.3d at 604.
We affirm the judgment of the district court.
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